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The 39th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) will meet next week in Geneva. On the agenda for this session are discussions around the Multilateral Treaty on the Protection of Broadcasting Organizations.

A number of organisations such as Communia, Creative Commons, the Program on Information Justice and Intellectual Property Education International, Electronic Information for Libraries, and the International Council on Archives among others have expressed concerns about the current exceptions and limitations text of the treaty. These organisations have drafted a proposal for alternative text to be included in the treaty that they hope will be discussed at the upcoming SCCR session.

What are these organisations concerned about?

The civil society organisations that have called for changes to be made to the text of treaty have four main concerns:

1. As currently drafted, the treaty fails to provide for mandatory minimum limitations and exceptions for uses such as education, quotation, or for reporting news. Exceptions and limitations for these sorts of uses are required by other copyright treaties like the Berne Convention.
   
   Most broadcast content is already subject to copyright. But the current text of the treaty risks creating an additional level of rights clearance on top of copyright. The civil society organisations calling for changes to the treaty argue that it is critical for the broadcast signal right be subject to the same exceptions and limitations as copyright, otherwise perfectly legal activities may be permitted in relation to copyright, but still infringe rights in the broadcast signal.
   
   
2. The treaty is more restrictive than the Rome Convention in permitting exceptions and limitations. While the draft text of the treaty requires exceptions to the right to be reflected in a country’s copyright law, the Rome Convention explicitly authorises exceptions beyond those contained in copyright. The result of adopting this text would be an inconsistency across copyright treaties.
   
   
3. The treaty would extend the three-step-test designed for authors’ rights into signal protection, another inconsistency that would narrow the scope of the Rome Convention. The three step test is designed to protect authors’ rights. The civil society organisations believe that the Committee has not adequately considered how the Berne Convention three-step-test is appropriate for signal protection.
   
   
4. The draft text of the treaty contains an exceptions provision that has been inappropriately cut and pasted from the Beijing Treaty and the WPPT. Again, this indicates that the Committee has not adequately considered how the Berne Convention three-step-test is appropriate for signal protection.

A proposal for alternative text

The civil society organisations concerned about the treaty have drafted an alternative text that they are urging the SCCR to adopt next week. This proposal addresses these concerns by:

• Ensuring that broadcast rights cannot prevent a lawful use of copyright content. The alternative text makes this principle mandatory and directly applicable, similar to the right of quotation under the Berne Convention.
  
  
• Guaranteeing a minimum level of harmonised exceptions across copyright treaties. The alternative text requires the exceptions permitted in the Rome Convention Article 15(1), and also adds the mandatory exceptions for accessible formats for people with disabilities required for copyright in the Marrakesh Treaty.
  
  
• Adopting a version of the cross-border use right from the Marrakesh Treaty, facilitating rights clearance for cross border trade in media, educational materials and other content relying on quotations from the content of broadcasts.
  
  
• Adopting the permissive approach from the Marrakesh Treaty ensuring that countries are specifically permitted to adopt flexible exceptions for both copyright and broadcast rights. This means that the alternative text would not prevent Member States from adopting otherwise lawful exceptions in relation to broadcast signals.
  
  
• Mirroring the Berne Convention by ensuring that raw facts and “news of the day” are excluded from protection in order to ensure consistency with copyright.

The WIPO agenda for limitations and exceptions

Also on the agenda this session is the WIPO action plan on limitations and exceptions. There have been long-standing concerns held by the education, libraries and archives sectors about the need international norms that require countries to have limitations and exceptions in their copyright law to allow research, teaching and learning activities to take place without infringing copyright.

The discussion of an action plan on limitations and exceptions is a positive step towards addressing these concerns. In order to progress these discussions, a group of civil society organisations have published a proposed draft treaty text for copyright exceptions for educational and research activities (TERA). The TERA Coalition is currently made up of 39 civil society organisations (a full list of organisations is available here).

The draft treaty requires that copyright laws contain rights to use materials for educational or research purposes compatible with fair practice, and would address the disparity between WIPO member states concerning the adequacy of exceptions for education and research. Discussion of this treaty at the 39th session next week will mark an important step towards ensuring that all Member States incorporate purpose-based exceptions into their copyright laws. The treaty should be considered as a model for future text-based work by the committee.

Delia Browne
National Copyright Director
National Copyright Unit
Copyright Advisory Group to COAG Education Council
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